Archive of posts for categoryInternational Legal Theory and Teaching

I have posted a long new essay on SSRN, my contribution to a fantastic collection of essays that OJ’s own Jens Ohlin is editing for Cambridge University Press, The Theoretical Boundaries of Armed Conflict & Human Rights. The essay is entitled “The Use and Abuse of Analogy in IHL,” and here is the abstract:

It is a truism to say that conventional international humanitarian law (IHL) regulates international armed conflict (IAC) far more extensively than non-international armed conflict (NIAC). In IAC, conventional IHL authorizes both targeting and detention and carefully circumscribes their use. In NIAC, by contrast, conventional IHL is silent on the authorization for targeting and detention and imposes only rudimentary limits on when individuals may be targeted or detained.

Like nature, however, international law abhors a vacuum. Many of the gaps in the conventional IHL of NIAC have been slowly filled by custom; the ICRC has concluded that 138 of the 161 customary rules of IHL now apply in both IAC and NIAC – nearly 86%. As a result, it is now common for scholars to claim that, with the notorious exceptions of the combatant’s privilege and POW status, very few critical differences remain between IAC and NIAC concerning the applicable rules of IHL.

From a positivist perspective, the gradual harmonization of IAC and NIAC through convention and custom is unproblematic, because both are formal sources of international law. Since 9/11, however, the United States has consistently taken the position that certain IAC-based rules of IHL can be applied in NIAC via a third method: analogy. The U.S. has argued, for example, that it can target members of any organized armed group that would qualify under IAC rules as a “co-belligerent” of al-Qaeda.

In assessing the legitimacy of such analogies, it is tempting to focus on whether it makes sense to apply a particular IAC rule in NIAC. Is the Haqqani Network’s relationship with al-Qaeda really equivalent to Italy’s relationship with Nazi Germany? Emphasizing the substantive “fit” between IAC and NIAC, however, simply obscures a more fundamental question: where does the U.S.’s authority to analogize between IAC and NIAC come from?

That is a critical question, for two reasons. First, targeting and detention potentially violate the human rights of the individuals they affect. As the International Law Commission has noted, it is not enough for targeting or detention to qualify as a legitimate act of self-defence under Art. 51 of the UN Charter; that targeting or detention must also be consistent with either IHL or international human rights law (IHRL), depending on which legal regime applies. Second, because all of the targeting and detention activities that occur in the NIAC between the U.S. and al-Qaeda take place extraterritorially, each U.S. use of force and each capture operation potentially violates the sovereignty of the state on whose territory it takes place.

Put more simply, by relying on analogized rules of IHL to justify expanded targeting and detention of al-Qaeda, the U.S. potentially runs afoul of a number of prohibitive rules of international law: the principle of non-intervention; the prohibition on the use of force; and IHRL prohibitions on the arbitrary deprivation of life and liberty. What, then, is the legal basis for those analogies?

This chapter’s answer is straightforward: nothing. There is no basis in international law for taking rules of IHL that exist as a matter of convention and custom only in IAC and applying them in NIAC by analogy – which means that the U.S. is systematically violating international law by relying on those analogized rules to target and detain extraterritorially.

I am very rarely happy with essays when I finish them, but I’m quite happy with this one. I’m sure many people will disagree with it, and I’ve likely made plenty of mistakes. But I think the essay addresses a number of difficult issues in IHL/IHRL that deserve further discussion. If I can provoke debate, I’ll be happy.

As always, comments, criticisms, and ad hominem attacks are welcome.

PS: I should note that the essay was inspired by, and provides a response to, my friend Ryan Goodman’s excellent 2009 article in AJIL, “The Detention of Civilians in Armed Conflict” (pdf here). I highly recommend reading his article before reading my essay.

That’s the provocative conclusion of the latest research by Joel Trachtman. Trachtman’s articles are typically succinct and seductive, so you owe it to yourself to read the short article (and skim the long appendix).

Trachtman examined 300 different CIL rules and found that only 13 (4.33%) have not been either incorporated in treaties or codified. Trachtman argues that the move toward treaties is because CIL cannot respond effectively to the great modern challenges of international society: global environmental protection, international public health, cybersecurity, financial cataclysm, and liberalization of movement of goods, services, and people. Trachtman also argues that CIL is incapable of addressing enduring challenges of regulating war, protecting human rights, and reducing poverty.

According to Trachtman, the reasons for CIL’s obsolescence are manifold. CIL (1) cannot be made in a coordinated manner; (2) cannot be made with sufficient detail; (3) cannot be made with sufficiently heterogeneous reciprocity; (4) cannot be made with specifically-designed organization support; (5) is not subject to national parliamentary control; (6) purports to bind states that did not consent but failed to object to its formation, and (7) provides excessive space for auto-interpretation by states or undisciplined judges.

For Trachtman, the obsolescence of CIL should lead states to stop arguing about CIL and start legislating mutually beneficial transactions. It should also lead NGOs and advocates to stop trying to “bootstrap a desired CIL past a target state” and instead engage with those states in treatymaking. Academics should “focus our analysis on the politically immanent, interdisciplinary, work of developing proposed rules that are administratively workable and effective, and that achieve actual social goals.” He suggests that the international legal system could survive just fine without CIL. So stop worrying about custom and learn to love treaties.

This is powerful stuff. With this piece Trachtman has done a great service to the academic debate on the relevance of CIL. Perhaps unwittingly, he also has done great service to customary international law by offering a comprehensive appendix that lists 300 of the most important CIL rules. If you want students to quickly grasp the scope and contours of CIL, just peruse the appendix.

Applying Trachtman’s thesis to my world of international economic law, I must concur with much of Trachtman’s argument. International trade law, in particular, is all about negotiating, interpretation, and enforcing treaties. We rarely if ever discuss CIL in a trade class. The very nature of an FTA is that it confers rights and obligations exclusively its Members. The defects of CIL are significant enough that trade law is almost exclusively treaty law.

International arbitration is more complicated. Trachtman only identifies two CIL rules for international economic law (Rule 207 and 208), both codified in the investment chapter of NAFTA Chapter 11. But the norm for investment arbitration is to articulate a general standard of protection in bilateral investment treaties (or FTA investment chapters), and then leave it to arbitral tribunals the task of devising detailed obligations from those general standards. Indeed, most BITs require States to afford investors protection consistent with international law, leaving to tribunals the task of discerning precisely what international law requires. BITs are not codifying CIL, but in a sense they instruct tribunals to create it.

Trachtman would not disagree that CIL is still relevant in limited contexts. He specifically recognizes that occasionally CIL is more precise than a codified rule. International humanitarian law and investment arbitration may be such categories. Likewise, Trachtman would concede that CIL is relevant where the treaty is binding on only a few states, as is the case with rules of state succession.

One can easily find selective instances where Trachtman is wrong. But what I doubt critics will be able to do is refute his general thesis that the codification of international rules through treaties has made CIL increasingly obsolete.

[Duncan French is the Head of Law School and a Professor of International Law at the University of Lincoln and Jean d’Aspremont is a Professor of International Law at the University of Manchester and a Professor of International Legal Theory at the University of Amsterdam.]

The two-day expert seminar on the identification of customary international law, co-organised by Lincoln Law School and the Manchester International Law Centre, took place on 13-14th November at the University of Lincoln. With the active participation of Sir Michael Wood, the Special Rapporteur of the International Law Commission (hereafter ILC) on the issue, the seminar witnessed the contribution of over 25 international lawyers from around the United Kingdom. Discussions focused on Sir Michael’s second report, the eight draft conclusions adopted by the ILC drafting committee and those issues yet to be considered in the preparation of the third report.

A blog for Opinio Juris in advance of the seminar entitled “Amidst the Academic Mania for the Identification of Customary International Law–The ILC and the Operative Value of Distinctions” had flagged many of the salient matters discussed during the seminar. As could be anticipated, interventions were made on the methodological aspects of the “two element” approach to the identification of customary international law, the role of international organizations in the determination of customary international law, inaction and acquiescence, and how customary international law has developed within particular areas of international law, notably in the economic and environmental spheres. There was also more wide-ranging discussion on, inter alia, the notion of opinio juris, the scope of the ILC conclusions, whether the development of human rights has impacted upon the identification of customary international law, international organizations, non-state actors, the role of the persistent objector, the relevance of specially affected states, the temporal inter-relationship between state practice and opinio juris, and the existence of special/local/regional custom, etc.

It is beyond the purpose of this blog to revisit the depth and richness of these exchanges. It will limit itself to formulating four sets of remarks.

First, there was general agreement among the participants that the scope of the ILC codification exercise is rightly restricted to the identification of customary international law. This was perceived as a pragmatic, and reasonable, delimitation. Nevertheless, it was acknowledged that one could not always easily distinguish between the formation, the identification and the evidence of customary international law. In that sense, it was highlighted that the current title was too narrow, and that, in the French text, the word (‘détermination’) captured more accurately the more nuanced and various complexities of the question. And this was not the only issue arising in the respective translations. The importance – both conceptually and practically – in the assessment of evidence in identifying customary international law [draft conclusion 3] takes on a subtly alternative understanding when interpreted as ‘áppreciation des moyens’.
Secondly, as indicated in the earlier blog, the practice and opinio juris of international organizations in the identification of customary international law – as distinct from the acts of States within and through such organizations – proved particularly contentious and triggered a lot of debate. The contribution of international organizations primarily raises the question as to whether the practice and opinio juris of international organizations should contribute generally to any customary rule, or only when it concerns the development of rules that will also bind international organizations. The Special Rapporteur and several participants indicated that, in their view, an organization can only contribute to the formation of a rule of customary law which it can potentially be bound by. This has to do with the self-commitment at the heart of the doctrine of customary international aw. It is also perhaps as a matter of equity between participants in the international legal system.

Equally, there was discussion as to which international organizations can contribute to the formation of customary international law. Legal personality is a seemingly determinate variable. Yet, a question remains as to whether there is a significant difference between organizations with a high degree of autonomy, those with more independent-minded secretariats and those international organizations that are member-state driven. It seems axiomatic that the greater the autonomy, the greater the extent to which the practice and the opinio juris of an international organization itself (in contrast to the acts of its members within the context of the organization) should contribute to customary international law.

In observance of United Nations Day on October 24, China’s foreign minister Wang Yi issued a long statement expressing China’s view of itself as a “staunch defender and builder of international law” (Chinese version here). As China-watchers know, China’s Communist Party has just completed its “Fourth Plenum” (sort of a Party leadership strategy meeting) on the theme of the promotion of the rule of law, so it is not surprising that China’s leadership would have something to say about the international rule of law as well.

The statement is pretty predictable (and largely unobjectionable) in its broad pledge for Chinese support to “international law” or the “international rule of law.” It is hardly pathbreaking. Still, as I have suggested in earlier posts, China’s government tends to have a slightly different view on what constitutes “international law” as compared to the United States or Europe. So while much of the statement is pretty anodyne (it is communist-party-speak, after all), there are a few points relating to China’s emphasis on sovereignty and its allergy to human rights that are worth noting:

1) International Law and China’s History of National Humiliation

The statement places China’s commitment to international law in the context of its historical struggles facing foreign oppression in invasion beginning with the Opium War of the 1840s. This reference to China’s historical weakness in the nineteenth and twentieth centuries is standard nationalist fare in China, but it is interesting that it is linked here to modern international law. As the statement notes, “[s]eeing the contrast between China’s past and present, the Chinese people fully recognize how valuable sovereignty, independence and peace are.” I think this historical experience is a useful explanation for why there are deep roots to the version of international law presented here. For China, international law is closely linked to its achievement of independence from foreign powers, and there is no principle more dear to China in international law than “sovereignty” and independence from foreign domination. Those of us educated in the States have been taught that sovereignty is usually an obstacle to the promotion of international law (Louis Henkin even called it the “S” word), but that concept is still hard to sell in China.

2) Sovereignty 5: Human Rights 0

Indeed, the statement mentions “sovereignty” five times as a fundamental principle of international law, as referenced in the United Nations Charter. Thus, the statement cites certain universally recognized norms of international law and relations such as

…[A]s respect for sovereignty and territorial integrity, peaceful settlement of international disputes and non-interference in the internal affairs of others, as enshrined in the UN Charter, are the foundation stones upon which modern international law and conduct of international relations are built.

This is right out of Article II of the UN Charter. But it is hard to imagine a statement by the United States about international law that did not also mention the UN Charter’s commitment to the protection of human rights. To be sure, human rights protection is not in Article II of the UN Charter’s list of “Principles” but it is odd (at least to an American) to see it ignored so completely here.

3) Just Say No to Responsibility to Protect

The statement takes direct aim at those countries who are interventionist.

Hegemonism, power politics and all forms of “new interventionism” pose a direct challenge to basic principles of international law including respect for sovereignty and territorial integrity and non-interference in other countries’ internal affairs. Some countries follow a pragmatist or a double-standard approach to international law, using whatever that suits their interests and abandoning whatever that does not.

Hmm.. I wonder which country or countries it is referring to here? This position also reflects longstanding Chinese policy against any kind of military intervention (and most other kinds as well) no matter what the justification. So don’t count on a Chinese vote for that Syria intervention.

4) Go Democracy (between, but not within, nations)!

The statement also endorses democracy…that is to say, democracy in international lawmaking. It accuses some countries (the One-Who-Must-Not-Be-Named) of trying to make “rules of certain countries as “international rules”, and their standards “international standards”. I am guessing this is clearly a shot at the U.S. in areas as varied as trade laws, IP, and human rights.

5) Philippines and UNCLOS arbitral tribunal: Don’t You Dare Ruin International Law

Not surprisingly, the statement takes aim at international and national courts. It declares:

“National and international judicial institutions should avoid overstepping their authority in interpreting and applying international law. Still less should they encroach on the rights and interests of other countries under the pretext of”the rule of law” in total disregard of objectivity and fairness.”

I think this is clearly a warning signal to the UNCLOS arbitral tribunal formed to resolve the Philippines claim against China. This is another sign there will be no backing down on this arbitration. China is going to continue to loudly proclaim its commitment to rule of law, and continue to reject and maybe even denigrate the legitimacy of this arbitration.

6) International Rule OF Law, not Rule BY Law

Finally, I’ll note that the statement’s use of the phrase “international rule of law” might help clarify a debate among China-watchers as to what China means by the phrase “rule of law.” As Josh Chin has usefully explained in the Wall Street Journal here, the Chinese phrase “法治“ (fazhi) is often translated as “rule of law” but could also be translated as “rule by law”. Indeed, there is a traditional Chinese “Legalist” tradition that thinks of law as an instrument for ruling society, but less so as a constraint on lawmakers and government. Most China-watchers would probably say that “rule by law” is a more accurate translation of what the Chinese Communist Party means when they call for the promotion of the “法治” (fazhi) in domestic reforms, since most expect the Party to remain effectively above the law for most key matters in the future, but for law to be used as a mechanism of social and political control of everyone else.

No matter what the Party means domestically by 法治 (fazhi), it is clear that its use internationally fits within the Western conception of law as an autonomous force constraining state power and preserving state equality.

In promoting international rule of law, the most important thing is to use universally applicable rules in international relations to distinguish right and wrong, end disputes and seek a win-win solution through coordination. This is vital to international rule of law. The formulation, interpretation and application of international law should all be conducive to this goal. Under no circumstances should we inflate the arrogance of hegemonism and power politics, still less use international rule of law to instigate disagreement and friction,for it will only lead us to a wrong direction.

Indeed, in its call for universally applicable principles, democratic lawmaking, and the use of law to restrain strong states from taking advantage of the weak, the Chinese Communist Party is invoking a version of rule of law that many Westerners would be familiar with. It will be interesting to see if this conception bleeds over into the Party’s push for domestic rule of/by law reform.

The hunky yellow bit labeled “H1” (for Hartog) toward the bottom is mostly the Belgian town. But notice those little white bits inside the yellow — labeled “N1, N2, N3” — those are little patches of the Dutch town (N for Nassau). The two towns are not geographically separate. Instead, they’re like M&M’s in a candy bowl. There are 22 distinct Belgian bits, and a dozen or so Dutch bits, and they are sprinkled together; so sometimes you’ve got bits of Belgium inside Dutch areas, and sometimes Dutch patches inside Belgian neighborhoods. They vary in size. The largest is 1.54 square kilometers, the smallest, an empty field, is 2,632 square meters.

Krulwich is correct to note that in the Middle Ages “Checkerboard maps were common.” One reason they were common was that feudalism had a different conception of sovereignty than the “modern” conception of sovereignty that became prevalent in the years following the Peace of Westphalia in 1648. Rather than strictly territorial, medieval sovereignty was in part relational, between lords and subjects as well as between and among varying levels of nobility. With an emphasis on personal loyalty and duty, the feudal conception of sovereignty was like a network of individuals with multiple linkages and relationships. Displaying such relationships as a territorial map with bold-line boundaries results in a crazy quilt that may actually obscure the complex interwoven relationships.

But the Westphalian emphasis on territorial sovereignty called for such bold-line maps. Areas that started as territorial patchworks were usually consolidated and rationalized. Krulwich continues:

But for some reason, writes Alastair Bonnet in his new book, Unruly Places, it didn’t [happen here]. During Napoleon’s time, villages were swept cleanly into one nation or another, the borders tidied up, but apparently — and no one can quite explain why — Baarle-Nassau and Baarle-Hertog escaped the broom. Maybe they were too small, too unimportant, but they made it through, their mosaic-ness intact, becoming, Bonnet says, a “living laboratory of medieval micro-borders.”

For more detail on the land grants, treaties, planning commissions, and other aspects of the history of these two towns, see this website.

This mosaic of sovereignty has led to some incredible results. In a 2008 post on Baarle-Hertog/ Baarle-Nassau, BLDGBLOG reported that:

Sarah Laitner, at the Financial Times, adds that “women are able to choose the nationality of their child depending on the location of the room in which they give birth.”

For more about the administration of Baarle-Hertog and Baarle-Nassau, see this .pdf.

Human rights lawyer Philippe Sands narrates an original piece that offers new insights into the lives of three men at the heart of the trial, with the music that crossed the courtroom to connect prosecutor and defendant.

A personal exploration of the origins of modern justice and the fate of individuals and groups, in images, words and music.

The piece is called “A Song of Good and Evil” and it will have its premiere in London on November 29th.

Engaging and educating as broad a public as possible about international law is no easy feat. For example, there have been depictions of international law and international legal themes in film, in television, and in fiction. While at times the authors of such works may want to say something about international law or international institutions, such works have varying degrees of accuracy and educational value. More often than not, “international law” or “the World Court” or “the UN” are just plot devices with very little consideration as to how any of these things actually work (or even what they are). And I don’t know of many (actually, any other) international lawyers actively writing and performing theater pieces with legal themes. (If there are, please let me know!)

Every work of art that depicts international law and international institutions affects the perception of some segment of the public about international law. Some of these books and films are produced in ignorance and stoke paranoia or the worst form of cynicism. However, because so many of the stories of international law are profoundly human stories, they can also be the stuff of great art. Or the stuff of entertainment that also enlightens.

So, break a leg Philippe Sands! (And please have a performance in New York.)

Hat tip: John Louth for having mentioned this event.

August 6th, 2014 - 11:22 PM EDT | Comments Off on “A Song of Good and Evil” and Telling International Law’s Story to a Broader Audiencehttp://opiniojuris.org/2014/08/06/song-good-evil/ |

There are many dads who have played make-believe with their little girls, perhaps taking the part of kindly king to his daughter’s princess. Not many people have turned this game into an international legal incident concerning state formation. But at least one man has. According to the Washington Post:

Jeremiah Heaton was playing with his daughter in their Abingdon, Va., home last winter when she asked whether she could be a real princess.

Heaton, a father of three who works in the mining industry, didn’t want to make any false promises to Emily, then 6, who was “big on being a princess.” But he still said yes.

“As a parent you sometimes go down paths you never thought you would,” Heaton said.

Within months, Heaton was journeying through the desolate southern stretches of Egypt and into an unclaimed 800-square-mile patch of arid desert. There, on June 16 — Emily’s seventh birthday — he planted a blue flag with four stars and a crown on a rocky hill. The area, a sandy expanse sitting along the Sudanese border, morphed from what locals call Bir Tawil into what Heaton and his family call the “Kingdom of North Sudan.”

There, Heaton is the self-described king and Emily is his princess.

Wow. Heaton just upped the ante for all non-royal dads. The Washington Post also reports:

Heaton says his claim over Bir Tawil is legitimate. He argues that planting the flag — which his children designed — is exactly how several other countries, including what became the United States, were historically claimed. The key difference, Heaton said, is that those historical cases of imperialism were acts of war while his was an act of love.

“I founded the nation in love for my daughter,” Heaton said.

That’s sweet. Really. But let’s turn to the international legal argument… (more…)

I am sad to mark the passing of one of the giants of international law, and one of my teachers, Professor Andreas Lowenfeld of NYU Law School. His career was exemplary; Andy operated at the highest levels of practice and academia. In an era when so many scholars and practitioners become hyper-focused on one or two specific areas, Andy not only had incredible depth and precision, but also brought the panoramic view and sweeping vision of an earlier generation of international lawyers. Though perhaps best known for his work in international litigation and arbitration, that description does not capture his career. Consider this excerpt from his New York Times obituary:

Professor Lowenfeld was a towering figure in the fields of public international law, trade and economic law, private international law, and international arbitration. He served on the NYU Law faculty for 47 years, influencing generations of lawyers, and continued to teach International Litigation and Arbitration and International Monetary System among other courses until as recently as Spring 2013. Professor Lowenfeld wrote more than 18 books and authoritative legal treatises and over 115 law review articles and argued before the United States Supreme Court, the Iran-U.S. Claims Tribunal, and the International Court of Justice in the Hague. He made landmark contributions to legal scholarship and practice on issues as varied as extraterritorial jurisdiction, international arbitration, international monetary transactions, trans-border child abduction, international monetary law, investor-state dispute settlement, economic sanctions, enforcement of foreign judgments, aviation law, sovereign immunity, international trade, and civil procedure. His most recent work was a comprehensive treatise on International Economic Law. An avid supporter of the interaction between academics and practitioners, he was frequently an arbitrator in international disputes, public and private. He served as a Reporter on two major projects of the American Law Institute and was a lecturer twice at the Hague Academy, first in 1979 and later in 1994. In the 1994 lectures, he proposed criteria for a global community free of strict legal rules and based instead upon what he termed “reasonableness, not certainty.” One of the hallmarks of his work was his commitment to eliminating what he viewed as an unnecessary divide between public and private international law. In 2007, he was awarded the Manley O. Hudson Medal of the American Society of International Law for his lifelong achievements in the field of international law.

And that doesn’t even cover his years in the State Department’s Office of the Legal Adviser during the Kennedy and Johnson Administrations where:

[h]e provided strategic counsel to those presidents during the Cuban Missile Crisis; the Nuclear Test Ban Treaty; the so-called “Chicken War,” in which the U.S. and the European Common Market sparred over poultry tariffs; and the U.S. invasion of the Dominican Republic.

Andy Lowenfeld’s scholarship and his career argued against the “unnecessary divide of public and private international law,” setting the stage (along with Philip Jessup) for the current focus on complex regulation, transnational law, and dispute resolution. He taught us how public and private international law interact in an interconnected system and, by his example, he showed us how diverse aspects of the international legal profession could be integrated into a coherent career.

I have the great fortune of having been one of Andy’s students. My second year at NYU, I took the general course in international law, which was then team-taught by Andy Lowenfeld and Theodor Meron. Learning international law from “Ted and Andy” as we affectionately referred to them (behind their backs, that is) was everything you would expect from such lawyers: a lively dialogue interweaving law, history, politics, and economics. I was also Andy’ s student in what was perhaps his signature course, his International Litigation and Arbitration seminar. Here he paired each JD student with a foreign LL.M. to brief and argue an issue in a case, before a bench made up of 3 of our classmates. It was a wonderful bit of experiential learning that has stayed with me and taught me as much about how to be a good teacher as to how to be a good litigator.

In the years since I graduated from law school, Andy Lowenfeld remained generous with his time and wise counsel. I may have become a professor, but he never stopped being my teacher.

But perhaps my favorite memory of Andy was from when I was the Director of Research and Outreach at the ASIL. Andy was a panelist on an international arbitration panel we organized for a Fifth Circuit judicial conference in San Antonio. After the panel, he told me we should go visit the Alamo. So, one hot summer afternoon we toured the Alamo together; I will always remember his enthusiasm in examining the exhibits, especially anything having to do with the deeds, land grants, and international agreements concerning the disposition of territory. He interspersed our conversation about the history of the U.S.-Mexico border with reminiscences from the State Department, career advice, some thoughts on scholarly projects I was considering, and anecdotes from his incredible career. At one point there was a boy, who was maybe seven years old, standing near us and holding a large faux-parchment facsimile of a document, probably recently acquired from the gift shop. Andy started questioning the boy about the topic of the text on his souvenir, whether or not the reproduction was accurate, and so on. (The boy stared, then shrugged; Andy walked on.) It made me smile watching Andy attempting a Socratic dialogue with a first grader. Even while walking around the Alamo, Andy Lowenfeld was first and foremost an educator and a mentor.

I want to close with a few of Andy’s own words, taken from his magisterial International Economic Law (Oxford, 2d. ed 2008). In the preface, he argues against the skeptics and describes (with perhaps a wink to Louis Henkin) a realistic appreciation of international economic law:

This book is not founded on a claim that all states and all economic enterprises behave at all times according to all the rules, nor that the rules are clear and universally agreed at all levels. But one would not say that there is no criminal law because crimes continue to be committed and are not always punished, or that there is no family law because marriages break up, husbands beat their wives, and children are abused. In fact international conventions, collaborative arrangements, roughly uniform national laws, and customary laws apply to much of the international economy; while there is no global sheriff, and the system of remedies does not reach as far as the system of rules, there are a surprising number of consequences of deviant behavior, and a growing number of fora for resolving disputes among states and between states and private participants in the international economy.

Almost 1,000 pages later, the closing passage puts more than his treatise into perspective: :

It is evident that this book has made more use of narrative and illustration, and less of flat normative statements than might have been expected from a treatise. This approach reflects my belief that the answers cannot be understood without the question, and that abstract statements cannot be comprehended without awareness of the underlying facts and continuing controversies.

This is not to deny the normative character of international economic law. But international economic law—like all law but perhaps more so—is a process. Any attempt to define the law as of a given moment cannot help but distort. The process continues, and the hope is that this book has illuminated the path.

The state of the international law academy in the United States is undoubtedly strong. International law and its progeny are no longer marginalized pieces of the law school curriculum as they were for much of the 20th century. U.S. Law Schools regularly offer international law, with a fair number now doing so in the first year (whether as a required course or an elective). Nor is the subject limited to a one-off class; schools often try to cover the more fragmented landscape with multiple offerings, from human rights to trade, from arbitration to international environmental law. Given this proliferation of courses, it’s not surprising to see a similar growth in the number and prominence of international law academics (there is, though, a chicken and egg question here as to which came first). Today, many schools have moved beyond the requisite “one” international law professor to incorporate faculty with a broad range of international and comparative research interests and experiences. By way of example, here, at Temple, depending on how you count, we have 11-13 international law faculty.

All that may come as cold comfort, however, to those looking to become international law professors at a U.S. law school in the coming years. It’s no secret that the U.S. legal education market is in a rather dramatic contraction right now. As applications tumble, schools are cutting the size of their entering classes, and in some cases their existing faculty. Last week, a great post by Sarah Lawsky (UC-Irvine) provided a wealth of comparative data on the impacts the market shifts are having on tenure-track hiring for U.S. law schools. The picture is not a terribly pretty one – from a high of 167 junior faculty hired in 2008 to 73 this year. I don’t know exactly how many of these 73 hires were in international law, but I’d guess not many. As schools re-trench, many will focus on hiring in domestic areas because that’s where the perceived jobs are for students (the supply for potential international lawyers having long outstripped the demand, at least for those with a U.S. J.D.). I’d welcome data that upsets my expectations, but, for now, I’m betting that international law teaching jobs (which were always pretty competitive) are now going to be very hard to get.

This situation leads me to ask three questions. For starters, is there anything aspiring international law academics can do to actually increase their chances of landing a job in the field? For example, I was asked by a PhD candidate at King’s College London a few weeks ago whether having a PhD in international law would be valued by U.S. law schools given how some law schools have been actively seeking to hire law professors who have PhDs. My answer, I’m afraid, was not terribly encouraging. A PhD without a J.D. will raise hackles on many faculties who want law professors to be lawyers. And where a candidate has both a PhD and a J.D., the pedigree of both degrees will matter more than the presence of the degrees themselves. Moreover, I’d hazard to guess that other factors may be more important to hiring committees, namely prior work experience in international law (which I think still matters), publications with an emphasis on the “s”, and having had a prior fellowship. Indeed, according to Lawsky, 84% of the 2014 hires came from a fellowship program (in contrast, 19 candidates had PhDs and none of these were in international law). And, of course, networking and ‘who knows you’ may actually be the most important aspects of a candidacy in a market that’s become so small.

Given the harsh hiring reality, my second question is what does the future hold for international law teaching, at least in the United States? Will prospective candidates simply keep their day jobs and avoid testing the market altogether? Will folks take a “wait and see” attitude, hoping for a rebound in interest and hiring in 3-5 years? Or, will candidates go abroad to try and teach? My sense is that the market in Europe for international law teaching has not suffered the same downturn currently plaguing the United States, and thus there may be more opportunities there. Similarly, I know from a number of post-docs who I’ve worked with that China, Singapore and other areas in the Far East are paying more (not less) attention to international law as well. I’d be interested to hear from more knowledgeable readers what the state of the European and Asian markets are for international law academics (and whether there are other teaching markets potential candidates should consider).

Third, and finally, I wonder if it’s a good or bad thing to have fewer new international law professors entering the profession? I’m inclined to look at it negatively on the assumption that international law work will continue to rise, not just as a stand-alone profession for lawyers, but as a component of the work all lawyers do in an increasingly globalized world. As such, there should be sufficient faculty to introduce students to this area and the legal work it involves. Others, however, I suspect might suggest the pendulum has swung too far and that U.S. law schools are devoting too much time and energy to international law in both curricular and hiring contexts, saying that the on-going re-adjustment is therefore a good outcome. Still others might argue that the issue is idiosyncratic; as law schools start to move away from uniform aspirations, a case could be made that certain law schools should become more focused on international law by virtue of their history, geography, or market placement at the same time as other law schools’ circumstances make the case for devoting less attention to international law.

What do readers think? Is there any hope for someone trying to get a U.S. law teaching job in international law in 2014-15? Are there alternative places candidates should look if, in fact, U.S. law schools are hanging out ‘no vacancy’ signs in international law? And, how worried should we be about this situation, whether in the short, medium, or long-term?

[UPDATE: With a hat tip to Peter Spiro, it seems Sarah Lawsky did track hiring candidates by subject matter, so we can actually see how many of this year’s lucky hires expressed an interest in international law. By my count it looks like there are 2 candidates who identified international law as their primary area of interest and one who did so for international trade. Three other candidates identified international as a third or fourth area of interest.]

As for me, I regard this ‘End of Treaties?’ idea as analogous to Francis Fukuyama’s famous End of History thesis. Like Fukuyama’s piece, I think the idea here is more an argument about the future of treaties as opposed to either an historical or empirical claim that treaties no longer matter much to international law. Just as it’s hard to argue that history ended with the Cold War, it’s hard to make the case that we’re now witnessing the end of treaties. On the contrary, there are more treaties in force today than ever before in human history. The United States has more than 10,000 treaties in force and the UN Treaty Office has registered more than 64,000 treaties (this notwithstanding widespread noncompliance by States with their obligation to register treaty commitments). The breadth and depth of these treaty commitments is equally striking — one is hard pressed to find an international law issue today where there is not some treaty that speaks, directly or indirectly, to the question.

Perhaps the “End of Treaties” idea should emphasize the decline in treaty-making as opposed to treaties themselves? Again though, I’m not sure there’s evidence to support the claim. True, the number of major multilateral treaty negotiations has fallen off in recent years (at least when compared to the late- and immediate- post Cold War periods) while other negotiations appear stalled. But it’s not clear to me that we’re heading to some definitive end-point of obsolescence rather than witnessing an oscillation over time in terms of when and how treaty-making gets done. Nor am I persuaded by the Senate’s recent recalcitrance on treaty-making. For starters, it’s actually a pretty small piece of U.S. treaty-making; I believe Senate advice and consent treaties in recent decades constitute only about 7% of the international agreements concluded by the United States. And, it’s not like the Senate has refused to give advice and consent entirely; 2013 saw 4 treaties get through. This is not to say that the Senate process is working well right now — it’s clear not — but rather to suggest it may not yet be time to write that process off completely.

Finally, I do not think one has to find that treaties as a form of international commitment are necessarily weakened by the emergence in recent years of all these new forms of what Tim calls ‘collective decision-making’. I don’t accept the idea that we’re in a zero-sum game where every time we use a political commitment or code of conduct, there’s one less treaty going forward. Instead, I wonder if the proverbial pie may be expanding with the expansion in forms of international cooperation; the future (or indeed, even the present) may bear witness to more treaties AND more political commitments, international institutional norm-making, soft law or what have you. Thus, Tim and I may part ways a bit here as a descriptive matter since he’s inclined to think there’s been some decline in treaty usage. I’d concede though that there’s research that we could do to settle the trade-off questions.

In the end, I may not be in agreement with the Agora’s theme, but I applaud its attention to the treaty topic. For me, treaties deserve more attention, not because they are in some form of decline, but rather because of how critical they have become to the functioning of the modern international legal order. So, I am looking forward to thinking more about Meyer and Trachtman’s posts and reading the remaining contributions later this week. I trust it’s the start of a great conversation.

Last week’s NETmundial conference serves as a reminder of just how much the nature of cyberspace remains (at least theoretically) undetermined. We still can’t agree on what kind of resource cyberspace “is”: Is it a global public good as Sir Tim Berners Lee proclaimed (i.e., a res communis) or just a collection of technology subject to sovereignty regulation like so many other resources? This theoretical divide may help explain the continuing back and forth between multi-stakeholder governance (which includes, but does not privilege, a role for States) versus the multilateral governance project (which most certainly does). NETmundial may have been a net plus for multi-stakeholder proponents, but I’m much less sanguine that it represents an end to claims that cyberspace can — and should — be regulated primarily by government controls over internet resources (for more on the details of NETmundial and its final statement see Milton Mueller’s take-away here).

My skepticism about how international law will draw borders for cyberspace governance leads me to think about other roles borders can play in cyberspace — that is, using international law to draw lines separating acceptable from unacceptable behavior, permitted conduct from required conduct, etc. I’ve drafted a new chapter that, in the context of cyber war, examines both the ways we draw law from borders and borders from law in cyberspace. I critique the status quo on both theoretical and functional grounds, concluding that we should seek to start a new process not just for constructing governance regimes, but normative ones as well. Consistent with the book’s central focus on cyber war, I proffer a case-study for such an approach with respect to armed conflicts, arguing international humanitarian law should adopt a Duty to Hack. My idea is that, even though it does so only occasionally now, international law should regularly require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives. You can download a copy of the paper here on SSRN.

For those looking for more details, here’s the abstract:

Warfare and boundaries have a symbiotic relationship. Whether as its cause or effect, States historically used war to delineate the borders that divided them. Laws and borders have a similar relationship. Sometimes laws are the product of borders as when national boundaries delineate the reach of States’ authorities. But borders may also be the product of law; laws regularly draw lines between permitted and prohibited conduct or bound off required acts from permissible ones. Both logics are on display in debates over international law in cyberspace. Some characterize cyberspace as a unique, self-governing ‘space’ that requires its own borders and the drawing of tailor-made rules therein. For others, cyberspace is merely a technological medium that States can govern via traditional territorial borders with rules drawn ‘by analogy’ from pre-existing legal regimes.

This chapter critiques current formulations drawing law from boundaries and boundaries from law in cyberspace with respect to (a) its governance; (b) the use of force; and (c) international humanitarian law (IHL). In each area, I identify theoretical problems that exist in the absence of any uniform theory for why cyberspace needs boundaries. At the same time, I elaborate functional problems with existing boundary claims – particularly by analogy – in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness. These prevailing difficulties on whether, where, and why borders are needed in cyberspace suggests the time is ripe for re-appraising the landscape.

This chapter seeks to launch such a re-thinking project by proposing a new rule of IHL – a Duty to Hack. The Duty to Hack would require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives. Thus, if a State can achieve the same military objective by bombing a factory or using a cyber-operation to take it off-line temporarily, the Duty to Hack requires that State to pursue the latter course. Although novel, I submit the Duty to Hack more accurately and effectively accounts for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. Moreover, adopting the Duty to Hack could constitute a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.

Last Spring, Temple Law School was pleased to host a two day workshop on the scholarship of one of international law’s true giants — Martti Koskenniemi (simply put, I’m a big fan). Organized by my colleague, Jeff Dunoff, it was a great event with a wide-ranging conversation launching off Martti’s works in international legal theory, international legal history, fragmentation, interdisciplinary scholarship, ethics and the future of international law.

Given how great the workshop was, I could not be more pleased to note that the accompanying papers have now been compiled and published in a single volume of the Temple International and Comparative Law Journal (vol. 27, no. 2). The full table of contents for the Symposium Issue can be found here.

The papers include Jeff Dunoff’s framing introduction, a fascinating paper by Martti on the historiography of international law, and a slew of papers by renowned scholars, including Kim Scheppele, Tomer Broude, Sean Murphy, Mark Pollack, Rob Howse and Ruti Teitel, Samuel Moyn, Jan Klabbers, Andrew Lang and Susan Marks, Frédéric Mégret, and Ralf Michaels. These papers address a number of themes that run through Koskenniemi’s work, including international law and empire; the fragmentation of international law; interdisciplinary approaches to international law; reading – and misreading – the tradition; and the international lawyer as ethical agent. Both individually and collectively, the papers represent a significant effort to engage, explore, and extend the ideas found in Koskenniemi’s writings.

The special symposium issue is the first of what will be a tradition of yearly Symposia that will be organized by Temple faculty and published in the Journal. As such, the Symposia marks a new form of collaboration between Temple faculty and students, and represent an experiment in academic publishing designed to provide students the experience of editing papers on cutting-edge research, and at the same time injecting faculty expertise into the selection and substantive editing of papers.

December 9, 2016Marrakech Express--Going Slow But Still on Track[Daniel Bodansky is Foundation Professor of Law at the Center for Law and Global Affairs’ Faculty Co-Director at the Sandra Day O'Connor College of Law; an Affiliate Faculty Member, Center for Law, Science & Innovation; an Affiliate Faculty Mem...

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[Charles Kels is a major in the U.S. Air Force. His views do not reflect those of the Air Force or Department of Defense.]
The fascinating and edifying debate between Adil Haque (see here, here, here, and here) and, respectively, Deborah Pearlstei...

November 30, 2016The Corrosive Risks of Lawless Leadership
[Geoffrey S. Cornis Professor of Law at South Texas College of Law Houston in Houston Texas. Prior to joining the South Texas College of Law Houston faculty in 2005, Professor Corn served in the U.S. Army for 21 years as an officer, retiring in the ...